S. S. JHA, A. K. GOHIL, J.

( 1 ) THE two appeals M. A. Nos. 151 and 152 of 1994 are heard together as both the appeals arise out of common award.

( 2 ) CONTENTION of the learned counsel for appellant insurance company is that in the absence of any fault on the part of Matador insured with the insurance company, the Claims Tribunal has erred in fastening the liability upon the appellant insurance company. He invited attention to the finding recorded in para 13 of the judgment, wherein Claims Tribunal has recorded a finding that the truck was driven in a rash and negligent manner and it had dashed against Matador, which resulted into the death of Gayaprasad and Radhacharan, who were sitting inside the said Matador. Again in para 19 of the award finding is recorded that the accident is caused on account of rash and negligent driving by the truck driver. Counsel for the appellant submitted that the Claims Tribunal erred gravely in fastening the liability upon the driver of Matador. The counsel for the appellant submitted that in view of the finding recorded by the Claims Tribunal liability cannot be fastened upon appellant insurance company.

( 3 ) MR. J. D. Suryavanshi, counsel for the respondent No. 9 United India Insurance co. Ltd. submitted that since this is a case of contributory negligence, therefore, insurance companies of both the vehicles are jointly and severally liable to pay the compensation. He supported the award.

( 4 ) MR. R. K. Goyal, Advocate for the claimants submitted that he has filed cross-objection for enhancement of compensation.

( 5 ) BRIEF facts of the case are that on 23. 6. 1989 at about 1100 hours deceased gayaprasad along with Radhacharan were travelling in Matador bearing registration no. CIW 6612 between Mehgaon and bhind. Truck No. CIG 2234 was driven from the opposite direction from Bhind to mehgaon. The vehicle was driven in a rash and negligent manner and this vehicle has dashed against the said Matador, which resulted into death of two passengers sitting in the said Matador. Thus, claimants have come forward with a case that truck was driven in a rash and negligent manner and it has dashed against Matador which caused death of two passengers travelling in Matador. The claimants have not come forward with a case that it is the case of contributory negligence of two vehicles. Appellant insurance company stated that there was no fault or negligence on the part of driver of Matador. Respondent No. 9 United India Insurance Co. Ltd. has denied the fact of accident in the reply but they have not pleaded in the reply that the liability of both the vehicles is joint and several and this is a case of contributory negligence. Respondent No. 9 has specifically pleaded that incident has occurred on account of fault of driver of Matador and it is specifically pleaded that there was no negligence on the part of truck driver and it has been prayed that United India Insurance co. Ltd. be deleted from the array of defendants. Respondent No. 9 has nowhere pleaded that this is the case of contributory negligence and owner and driver of both the vehicles are jointly and severally liable with their insurance companies to pay the compensation.

( 6 ) EVIDENCE is recorded before the claims Tribunal. NAW 1 Rajeev has deposed that the truck was driven from Bhind to Gwalior and on account of some fault in diesel pump truck was stopped at that time and Matador dashed against the truck which was standing by the side of road and there was negligence on the part of Matador driver. Similar deposition has been given by NAW 2 Collector Singh. There is no evidence on the part of United India insurance Co. Ltd. United India Insurance co. Ltd. has not led any evidence to prove that the accident occurred on account of negligence of driver of Matador. Best witness to prove the negligence was driver of matador, who has not been examined.

( 7 ) IN the absence of examination of any witness by the owner of Matador and the driver, the Clai

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